Gregory H. Miniard v. Shamrock Coal Company, Incorporated (Board decision, November 23, 2021)

BRB interlocutory order. This unpublished decision is not precedent. The Benefits Review Board denied the employer's request for reconsideration en banc and corrected a sentence in its earlier opinion. The earlier decision had remanded part of the benefit denial, so this order did not resolve benefit entitlement. A final Board decision ordinarily becomes final 60 days after issuance absent timely judicial review or reconsideration under 20 C.F.R. § 802.406; a party may request Board reconsideration within 30 days under 20 C.F.R. § 802.407.

Plain-English summary

Shamrock Coal asked the Board to reconsider its 2019 decision, which had upheld part of a denial of Gregory Miniard's black lung claim and vacated part for further proceedings. The Board denied reconsideration en banc because a majority did not vote to grant it. The order also corrected the earlier opinion's description of a district director's statement: M&E Enterprises was not financially capable of paying benefits, rather than not financially incapable. The Board treated the employer's constitutional challenge to the 15-year presumption as moot. This order left the earlier remand in place and did not decide Miniard's benefit entitlement.

Decision snapshot

• Authority: Board reconsideration under 33 U.S.C. § 921(b)(5) and 20 C.F.R. §§ 802.407 and 802.409.
• Outcome: Reconsideration en banc denied; prior opinion corrected by erratum.
• Key point: The correction reversed the meaning of the prior opinion's statement about M&E Enterprises' financial capacity.

Full text (DOL BRB public release)

U.S. Department of Labor
Benefits Review Board
200 Constitution Ave. NW
Washington, DC 20210-0001

BRB Nos. 18-0174 BLA and 18-0174 BLA-A
Case No. 2016-BLA-05329

GREGORY H. MINIARD
)
)
Claimant-Petitioner )
Cross-Respondent
)
)
v. )
)
SHAMROCK COAL COMPANY,
)
INCORPORATED, self-insured through SUN )
DATE ISSUED: 11/23/2021
COAL COMPANY
)
)
Employer-Respondent )
Cross-Petitioner
)
)
DIRECTOR, OFFICE OF WORKERS’ )
COMPENSATION PROGRAMS, UNITED )
STATES DEPARTMENT OF LABOR ) ORDER on MOTION for
)
RECONSIDERATION
Party-in-Interest ) EN BANC AND ERRATA

Employer has filed a timely motion for reconsideration of the Benefits Review Board’s Decision and Order affirming in part and vacating in part the administrative law judge’s denial of benefits in this case, Miniard v. Shamrock Coal Co., Inc., BRB Nos. 18- 0174 BLA, 18-0174 BLA-A (Aug. 30, 2019) (unpub.).1 33 U.S.C. §921(b)(5); 20 C.F.R.

1 The Board’s decision misstates, “The record in this case contains a statement from

the district director submitted pursuant to 20 C.F.R. §725.495(d) indicating that M&E Enterprises is not financially incapable of assuming liability for the payment of benefits.” Miniard v. Shamrock Coal Co., Inc., BRB Nos. 18-0174 BLA, 18-0174 BLA-A, slip op. 10 (Aug. 30, 2019) (unpub.) (emphasis added), citing Director’s Exhibit 64. The sentence is corrected to read, “The record in this case contains a statement from the district director submitted pursuant to 20 C.F.R. §725.495(d) indicating that M&E Enterprises is not financially capable of assuming liability for the payment of benefits.” §802.407. Claimant did not respond. The Director, Office of Workers’ Compensation Programs, responds, urging denial of the motion. After consideration of Employer’s contentions and review of the Board’s disposition of this case, a majority of the Board not having voted to grant Employer’s motion,2 Employer’s motion for reconsideration en banc is denied.3 20 C.F.R. §§801.301(b), (c), 802.407(b), (d), 802.409.

By Order of the Board:

Thomas O. Shepherd, Jr.
Clerk of the Appellate Boards

2 Administrative Appeals Judge Ryan Gilligan was on the panel of the Board’s decision but he is no longer with the Board. 20 C.F.R. §802.407(a).

3 Citing Texas v. United States, 340 F. Supp. 3d 579, decision stayed pending appeal, 352 F. Supp. 3d 665, 690 (N.D. Tex. 2018), Employer contends the Affordable Care Act (ACA), which reinstated the Section 411(c)(4) presumption, Pub. L. No. 111- 148, §1556 (2010), is unconstitutional and the case should be held in abeyance. Employer’s arguments with respect to the constitutionality of the ACA and the severability of its amendments to the Black Lung Benefits Act are now moot. California v. Texas, 593 U.S. , 141 S. Ct. 2104, 2120 (2021).